Court rules Facebook 'like' is free speech

9/18/13 2:06 PM EDT

“Liking” a political candidate’s Facebook page is a protected form of speech under the First Amendment, a federal appellate court ruled Wednesday.

The decision came in a lawsuit brought by six former employees of the Hampton, Va., sheriff’s office, who said they were not reappointed to their jobs when the sheriff won reelection in 2009 because they supported his opponent in the election.

Two of the plaintiffs argued their support of the sheriff’s opponent on Facebook were the reason they were not hired back. One “liked” the opponent’s page and posted an encouraging comment, and the other just posted a supportive comment to the page.

The district court had ruled that the employees’ Facebook activity wasn’t free speech, that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” but on Wednesday the Fourth Circuit Court of Appeals rejected that interpretation (opinion here).

After an analysis of how a Facebook “like” works, which includes adding a picture of the candidate’s page to the user’s own profile and a story popping up in that user’s friends’ newsfeed announcing the "like", the court concluded a “like” was substantive speech.

“Once one understands the nature of what Carter did by liking the campaign page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the 'like' button literally causes to be published the statement that the user 'likes' something, which is itself a substantive statement,” Chief Judge William B. Traxler Jr. wrote for the three judges on the case, who were unanimous on the free speech issue.

“In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech,” Traxler wrote.

The court issued a split ruling, upholding the free speech claims of three of the defendants, including the two who used Facebook, and rejecting the case of the other three. The case was sent back to the district court to determine whether the jobs of the first three should be reinstated.